Y THECLAMMA Vs. UNION OF INDIA

JUDGEMENT

(1.) The short point involved in this petition under Art. 32 of the Constitution is whether linguistic minority educational institutions like the Andhra Education Society are governed by sub-s. (4) of S. 8 of the Delhi School Education Act, 1973. The petitioner Smt. Y. Theclamma, Vice-Principal, Andhra Education Society Secondary School, Prasad Nagar, New Delhi challenges the legality of an order passed by the managing committee of the Andhra Education Society, New Delhi dated April 23, 1986 placing her under suspension pending a departmental inquiry against her.

(2.) The facts lie within a narrow compass. The Andhra Education Society is a society formed under the Societies Registration Act, 1860 with a view to imparting education to the children belonging to the Andhra community and others in Delhi. It runs as many as four schools - a senior secondary school at Deen Dayal Upadhyaya Marg, a secondary school at Prasad Nagar, a middle school at Janak Puri and another at East of Kailash. The first three of these are recognised by the Director of Education, Delhi Administration and are aided by the Government to the extent of 95%. The petitioner is thus employed in a government aided school. By the impugned order dated April 23, 1986, the management instituted a departmental inquiry against the petitioner on certain charges and placed her under suspension in exercise of R. 115 of the Delhi School Education Rules, 1973 pending the inquiry. A copy of the impugned order of suspension was forwarded on the same day to the Director of Education. On the next day i.e. on April 24, 1986, the management addressed a letter to Deputy Director of Education, District West, New Delhi formally intimating that the petitioner had been placed under suspension pending inquiry on a charge of misconduct as specified for the reasons mentioned in the statement of charges and of allegations forwarded. On that day, the petitioner brought a suit for perpetual injunction against the management being Civil Suit No. 213/86 in the Court of the Subordinate Judge, First Class, Delhi. She also made an application for grant of temporary injunction under Order XXXIX, R. 1 of the Civil Procedure Code, 1908 for restraining the managing committee from proceeding with the departmental inquiry. The temporary injunction was sought on the ground that the managing committee was not duly constituted and besides, the impugned order of suspension was violative of sub-s. (4) of S. 8 of the Act. On the same day, the learned Subordinate Judge passed an order for maintaining the status quo. However, the management entered appearance and applied for vacating the injunction on the ground that the petitioner had already been suspended on April 23, 1986. It also pleaded that the school was being established and 'administered by the Andhra Education Society which being a linguistic minority educational institution was protected under Art. 30(l) of the Constitution and therefore the provisions of the Act and in particular of sub-s. (4) of S. 8 were not applicable. The learned Subordinate Judge by his order dated August 20, 1986 following the decision of the Delhi High Court in S. S. Jain Sabha (of Rawalpindi) Delhi v. Union of India, ILR (1976) 2 Delhi 61 held that the Andhra Education Society was protected under Art. 30(l) and was therefore not governed by sub-s. (4) of S. 8 of the Act and accordingly dismissed the application for grant of temporary Injunction. Instead of moving the High Court, the petitioner straightway filed a Special Leave Petition under Art. 136 of the Constitution in this Court which was obviously not maintainable. On September 10, 1986 learned counsel for the petitioner finding that it was difficult to support the petition for grant of special leave, sought an adjournment to take further instructions, and the matter was accordingly adjourned to September 22, 1986. In the meanwhile, the petitioner moved this petition under Art. 32 of the Constitution and thereafter withdrew the suit. On the adjourned date, the learned counsel also withdrew the Special Leave Petition. The Special Leave Petition was accordingly dismissed as withdrawn.

(3.) Ordinarily, the Court would have directed the petitioner to avail of her alternative remedy under Art. 226 of the Constitution before the High Court but we were constrained to issue notice inasmuch as the High Court had in the year 1979 by its judgment in Andhra Education Society v. Union of India and Anr. followed its earlier decision in S. S. Jain Sabha's case, (supra), and allowed a batch of Writ Petitions filed by the Andhra Education Society and other linguistic minority educational institutions holding that in view of the protection of Art. 30(l) these linguistic minority educational institutions were not governed by Ss. 3, 5, sub-s. (4) of S. 8 Ss. 16 and 25 of the Act and the relevant rules framed thereunder and therefore no prior approval of the Director of Education was necessary before passing an order of suspension against a teacher pending a departmental inquiry. We were also constrained to entertain the petition because a similar question was raised by the Frank Anthony Public School Employees' Association by a petition under Art. 32 of the Constitution. Since then the Court has in Frank Anthony Public Employees' Association v. Union of India, (1986) 4 SCC 707 struck down S. 12 of the Act as being violative of Art. 14 of the Constitution insofar as it excludes the teachers and other employees of unaided minority schools from the beneficial provisions of Ss. 8 to 11 (except S. 8(2))i.e. except to the extent that it makes S.8 (2) inapplicable to unaided minority educational institutions.